Alphabet soup—uhm, uhm, not good

by Carla Rautenberg and Deborah Van Kleef

We’re writing this column over the Fourth of July weekend. It seems a good time to reflect on the importance of the rule of law to our democratic system. Legislatures, which we elect, make law; court systems adjudicate that law. It is a highly imperfect system in which tragic mistakes are made daily, but we have not yet found a better method by which to govern ourselves. Our legal system operates from the municipal level up to the state and then the federal level. The U.S. Supreme Court has the final word.

Or does it?

To shed light on this question, we reviewed some testimony presented to Cleveland Heights City Council at the third annual Democracy Day public hearing held last Jan. 21. Stewart Robinson and Dean Sieck addressed the threat that international trade mechanisms TISA and ISDS pose to municipalities like University Heights and Cleveland Heights.

Why might local citizens address their city council on the issue of foreign trade? If it seems bizarre, in fact, it is. And what on earth is this alphabet soup [of acronyms]?

TISA is the Trade in Services Agreement, and ISDS stands for Investor State Dispute Settlement. But wait—there’s more: TPP is the Trans-Pacific Partnership and TTIP is the Transatlantic Trade and Investment Partnership. Like their predecessors NAFTA and CAFTA (the North American and Central American “free trade agreements,” respectively), the “T” treaties all contain ISDS provisions.

If you get the idea that regular people were never intended to understand any of this, you would be right on the money. Negotiations are kept secret, even from members of Congress. But information can and does leak out.

Stewart Robinson explained, “TISA . . . is a proposed international trade treaty between 23 parties, including the European Union and the U.S., [which] aims at privatizing services such as banking, health care and transport.” He continued, “TISA is a threat to regulations that people really care about, such as what kind of development is allowed in their neighborhoods or the standards for hospital care. Instead of adopting TISA, governments must strengthen regulations based on public interest and the democratic process.”

Dean Sieck stated, “This is how ISDS works: An investor holds that the actions of a government have caused it to lose ‘expected future profits.’ The aggrieved investor takes its ‘case’ to a tribunal of three corporate lawyers for their determination. . . . The accused may be any level of government, municipal, county or state, but the defendant is always the national government of the accused.”

ISDS was originally devised to stop foreign governments from seizing assets, but is now mainly used by corporations to challenge regulations in foreign countries where they have investments. ISDS provisions are embedded in NAFTA and CAFTA, and have been strengthened in TPP, TTIP and TISA.

Sieck continued, “The ‘judges’ have no connection to the legal processes of either the investor’s or the defendant’s home country. . . . The complainant . . . sues a government for the kinds of actions governments take, for example, labor, environmental, or health or safety laws. Once the judgment is rendered, it cannot be appealed. . .”

Under ISDS, then, the laws created in one country can be overturned in the interest of an investor from another country, and there is no appeal. In other words, the right of an investor to profit takes precedence over our elected representatives’ responsibility to guarantee our safety and well-being.

What kind of rule of law is this? Actually, the kind we have right now.

In January 2016, TransCanada sued the United States for $15 billion, calling the Obama administration’s cancellation of the Keystone pipeline “arbitrary and unjustified.” Cleveland Heights City Council recently declined to re-zone property at Vandemar Street and Mayfield Road to permit a 16-pump Circle K gas station and convenience store selling alcohol on the site. Under the ISDS provisions of NAFTA, Canadian-owned Circle K International could sue the U.S. government and Cleveland Heights for having negatively affected Circle K’s expected future profits.

ISDS and the rest of the alphabet soup are not so much about “free trade” as [they are] about allowing multinational corporations to override the laws of sovereign governments.

TPP negotiations have concluded; all that remains is an up or down vote in Congress and the president’s signature. TISA and TTIP are still being negotiated. For more information about these top-secret deals, visit www.citizen.typepad.com/eyesontrade.

Carla Rautenberg and Deborah Van Kleef

Carla Rautenberg is an activist and a lifelong Cleveland Heights resident. Deborah Van Kleef is a musician and writer, who grew up in Cleveland Heights, and has lived here as an adult for over 30 years. Contact them at heightsdemocracy@gmail.com.